P. v. Gonzalez
Filed 8/6/13 P. v. Gonzalez CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. JOSE A. LOPEZ GONZALEZ et al., Defendants and Appellants. | E053751 (Super.Ct.No. FVA1000466) OPINION |
APPEAL
from the Superior Court
of
Bernardino County.
Arthur Harrison, Judge. Affirmed.
Correen
Ferrentino, under appointment by the Court of Appeal, for Defendant and
Appellant Jose A. Lopez Gonzalez.
John
L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant
Judith Mendez Lopez.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and
Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and
Respondent.
This case involves defendants and
appellants, Jose A. Lopez Gonzalez (Gonzalez) and his wife, Judith Mendez Lopez
(Lopez). A jury found Gonzalez and Lopez
(collectively “defendantsâ€) guilty of seven counts each of knowingly owning a
mischievous animal that caused serious bodily
being. (Pen. Code, § 399, subd.
(b).)
prison for terms of four years, four months.
Lopez
raises six issues on appeal. First,
Lopez contends there is not substantial evidence she knew her dogs were
vicious. Second, Lopez asserts
substantial evidence does not support two of the four convictions related to
the victim Destiny, because the evidence reflects Destiny was bitten by only
two dogs. Third, Lopez contends her
sentences for all but one of her convictions should have been stayed pursuant
to section 654. Fourth, Lopez contends
the multiple convictions violate the law against double jeopardy because she
committed only one negligent act. Fifth,
Lopez asserts the trial court erred in instructing the jury on the knowledge
element of the offense. (CALCRIM No.
2950.) Sixth, Lopez contends the trial
court erred by not instructing the jury on the law of unanimity. We affirm the judgment.
Gonzalez
raises three issues on appeal. First,
Gonzalez asserts substantial evidence does not support the finding he knew his
dogs were vicious prior to the attack.
Second, Gonzalez contends the evidence does not support a finding
Destiny was bitten by four dogs. Third,
Gonzalez contends the trial court erred in instructing the jury on the
knowledge element of the offense.
(CALCRIM No. 2950.) We affirm the
judgment.
In
2010, Josephine
title="">[2] and her six children were residing in Fontana. Josephine’s children are: (1) Andrew, who was 12 years old at the time
of trial in 2011; (2) Star, who was 10 years old in 2011; (3) Princess, who was
eight years old in 2011; (4) Hector, who was seven years old in 2011; (5)
Destiny, who was six years old in 2011; and (6) Precious, who was four years
old in 2011.
On
February 1, 2010, Josephine
took her six children for a walk. The
family walked on a trail along a canal.
Five to 10 minutes into the walk, Josephine observed four dogs barking
and running loose. Josephine was not
concerned about the dogs because they were far away from the family and
eventually the dogs returned to a residence.
However, approximately five minutes later the dogs returned. The dogs were at the family’s location
“[b]efore [the family even] realized that [the dogs] were there.â€
The
children became scared. The family ran
and threw rocks at the four dogs. The
dogs chased the family and knocked some of the family members, including
Josephine, to the ground. Josephine was
attacked by a black pit bull type of dog.
When Josephine was knocked down, she was holding Precious, and Hector
was grabbing onto her, so all three were knocked over. Josephine was not bitten during the
attack. When Josephine managed to rise
from being knocked down, she saw dogs “had Destiny already.†Josephine began throwing rocks at the dogs.
Destiny
yelled and screamed while on the ground.
The dogs were biting Destiny and “wouldn’t let her go.†Destiny was bitten by two black dogs. The third and fourth dogs were “brown and
white, black spotted dogs.†It appeared
to Josephine that the dogs were eating Destiny.
Approximately four minutes into the attack, Josephine used her cellular
telephone to call 911.
Antonio
Galvan was in the backyard of his residence when he saw the dogs attacking the
family. Galvan saw four dogs attacking
Destiny. Galvan believed one of the dogs
was trying to kill the child, while a second dog was trying to “take the
leg.†Galvan jumped over his fence to
help the family, but the dogs attempted to attack him, so he left to find more
help.
Eventually,
Galvan and three other men came to assist the family. The men used boards to hit the dogs multiple
times. The dogs left the family and ran
home. The attack lasted for five to 10
minutes. Galvan believed Destiny was
dead as a result of the attack. Josephine
did not see anyone standing near the residence where the dogs ran. The dogs bit three of the children: Destiny, Hector, and Princess. The children were taken to a hospital.
Hector
suffered wounds on his legs and hips.
Hector required approximately 200 staples to close his various
wounds. Princess suffered one wound on
her leg. Destiny was hospitalized for 12
days. Destiny fell into a coma and
remained comatose for seven days.
Destiny suffered wounds on her throat, her head, the right side of her
chest, and her upper thighs.
Additionally, Destiny suffered broken ribs and a collapsed lung. All three children suffered permanent scars.
Fontana
Police Officer Guerrero responded to Josephine’s 911 call. When Guerrero arrived at the location of the
attack, he saw dogs “walking, stopping, [and] barking†at people. Guerrero observed a group of men “trying to
fend off the dogs†by throwing rocks at them.
The dogs retreated and entered the yard of a residence, by going through
a hole under the residence’s chain-link fence.
Guerrero saw three holes under the fence. The chain-link did not touch the ground, and
there was “a gap where the dogs could easily just crawl under.â€
Guerrero
approached the yard. He saw five
dogs: one mastiff that was tied to a
truck, and the four pit bulls he had seen go under the fence. As Guerrero neared the fence, the dogs began
putting their heads under the fence, as though trying to exit the yard. Guerrero pepper sprayed the dogs multiple
times and eventually ran out of spray.
After the spray was gone, a black pit bull tried exiting the yard. Guerrero shot the dog. The dog died from the gunshot.
Jamie
Simmons, an animal services officer for the Fontana Police Department, also
responded to the 911 call. Simmons went
to the location where the attack took place and then to the house where
Guerrero had already shot one dog. Simmons
saw the other dogs “fence fighting†with the police officers. The three pit bulls “appeared to be highly
agitated.†Simmons was surprised the
dogs were agitated because it had taken her approximately 25 minutes to arrive
at the house after receiving the dispatch.
Simmons
pepper sprayed the dogs, but the dogs did not retreat, which is “very unusualâ€
behavior. As Simmons tried to capture
the black pit bull, using a five-foot pole with a loop on the end, the dog
grabbed her sleeve and ripped it. If
Simmons had not been wearing her jacket, the dog would have bitten her. Eventually, Simmons caught the black pit
bull. At that point, a person inside the
residence, Maria Mendez (Mendez), stepped outside the house. Mendez is Lopez’s niece, and she lived at the
house. Mendez appeared “surprised by all
the noise and activity.†The remaining
two pit bulls came to Mendez after “a couple of commands.†Simmons took the dogs from Mendez.
The
fence around the yard, where the dogs had entered, was “flimsy.†The fence was haphazardly constructed—it was
not anchored in cement. The area of the
fence where the dogs entered and exited appeared “bowed out,†indicating the
dogs had entered and exited “many times.â€
There was a “tread path†or worn foot path on the ground leading to the
one of the holes under the fence.
Various items had been placed along the fence to block different holes,
such as wood, cement blocks, and a ceramic kitchen sink.
Simmons
transported the dogs to the City of San Bernardino Animal
Shelter. The
dogs remained unusually aggressive at the shelter. Simmons finds dogs tend to be less aggressive
upon arriving at the shelter, because they are in a neutral location and no
longer protecting their territory; however, these dogs remained aggressive. Simmons had to seek assistance from another
officer to transfer the dogs from the truck to the kennels. None of the dogs had licenses, rabies
vaccinations, or collars.
The
next morning, Simmons returned to the shelter to evaluate the dogs. The smaller of the four dogs, a pit bull mix
(approximately 57 pounds), was fearful and agitated. The dog would bite if cornered, and not
retreat. In Simmons opinion, the dog was
“led to have bad behavior since the beginning of his ownership . . . .â€
A
second pit bull, the one that ripped Simmons’s sleeve, was agitated and
aggressive. The dog weighed
approximately 80 pounds. The dog’s
agitation did not diminish at the shelter, which was “very surprising
behavior.†Typically, aggressive dogs
will eventually relax at the shelter, but this dog did not calm down. The dog was “very tense†and “more agitated
by children walking by as opposed to adults.â€
The
black pit bull that was shot weighed approximately 71 pounds. The fourth pit bull, which had brindle
coloring, weighed approximately 68 pounds.
The fourth pit bull was also aggressive, lunging at the kennel gate as
people passed by.
Simmons
concluded defendants were “grossly irresponsible†pet owners, taking into
consideration defendants’ fence, amount of dogs, and the dogs’ breeds. Simmons said this attack was “the worst case
[she had] ever responded to as far as animal bites to multiple victims.â€
Defendants
and Mendez shared the responsibility of caring for the dogs; however, the dogs
belonged to defendants. Mendez had
previously discussed with Lopez the idea of “getting rid of the dogs.†Mendez wanted to be rid of the dogs because
“‘she was afraid of the dogs.’â€
Defendants had the dogs to protect the various tools scattered
throughout their yard.
In
2006, Gary Ili was a truck driver. On
June 19, 2006, he was making a delivery in Fontana. Ili exited the cab of his truck and walked to
the business where he was delivering sodas.
As Ili walked, he passed by a residence and saw pit bulls behind a
fence. As Ili approached the business’s
entrance, a brown pit bull began biting Ili’s left ankle. The dog “locked on to [Ili’s] ankle.†Ili kicked the dog three times with steel
toed boots, and the dog finally released Ili.
The business owner called animal control. Ili suffered six puncture wounds on his right
and left legs.
Ili
filed a “full complaint†with animal control.
Ili learned Lopez was the dog’s owner.
Approximately three weeks later, Ili returned to the location of his dog
attack to make another delivery. While
Ili was making the delivery, Lopez approached him and said, “‘My dog wouldn’t
bite you.’†Ili responded, “‘Your dog
bit me.’†Lopez said, “‘It wouldn’t do
that.’†Ili saw the pit bull at the
residence, pointed to it, and said, “‘That brown pit bull bit me.’†After that, Ili left. In 2006, Lopez received a citation for the
dog biting Ili, and the dog was quarantined.
During
closing argument, the prosecutor asserted:
Count 1 consisted of the bite on Princess’s leg; Counts 2 and 3 were
comprised of two dogs biting Hector; Counts 4, 5, 6, and 7 consisted of each of
the four dogs biting Destiny.
A. KNOWLEDGE
Defendants
contend there is not substantial evidence supporting the finding they knew the
dogs had vicious propensities. We
disagree.
When
applying the substantial evidence
standard, “we review the record ‘in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]â€
(People v. Watkins (2012) 55
Cal.4th 999, 1019.)
The
standard remains the same if the issue involves circumstantial evidence. “‘“Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced
of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.’â€
[Citations.]â€â€™ [Citation.]’ [Citations.]â€
(People v. Watkins,
omitted.)
Defendants’
crimes require proof that they had knowledge of the dogs’ propensities to
injure people or create a risk of harm to people. (People
v. Berry (1991) 1 Cal.App.4th 778, 786.)
Defendants
cared for the dogs—providing them food and water. Thus, the record reflects defendants regularly
saw the dogs. Next, the record reflects
the dogs were unusually aggressive, in that (1) they did not retreat when
pepper sprayed, (2) did not calm down upon arriving at the shelter, and
(3) remained aggressive days after being at the shelter. From this evidence, it can reasonably be
inferred that the dogs were prone to aggressive behavior. The dogs did not have an isolated incident of
aggression; rather, aggression was their natural and near constant disposition,
because they were continually aggressive in situations where other dogs would
have eventually relaxed.
The
dogs displayed their aggressiveness by (1) biting people if given an
opportunity; (2) jumping on the fence toward the officers; (3) charging at
their kennel fences; and (4) lunging toward people. This evidence creates an inference that the
dogs’ aggressive tendencies were directed at humans, as opposed to small
animals or one another. Further, Mendez
told Lopez she wanted to get rid of the dogs.
Mendez wanted to be rid of the dogs because she was afraid of them. From this evidence, a reasonable trier of
fact could infer that the dogs acted aggressively when in the presence of their
caretakers, i.e., defendants and Mendez.
Thus, given the evidence that defendants regularly saw the dogs, the
dogs were disposed to aggressive behaviors toward humans, and Mendez was afraid
of the dogs, a reasonable person could conclude defendants knew of the dogs’
vicious propensities toward people.
Therefore, the “knowledge†element is supported by substantial evidence
in regard to both defendants.
Moreover,
as to Lopez, the record reflects she was notified that one of her pit bulls bit
Ili in 2006. When Lopez did not believe
her dog would have injured a person, Ili personally pointed out the dog to Lopez. From this evidence, a reasonable person could
conclude Lopez was aware her dogs had problematic behaviors, because it is
unlikely one dog would bite a person walking down the street, while all the
other dogs were well-adjusted and trained.
Thus, the evidence of Lopez’s knowledge is even more substantial.
Lopez
asserts the knowledge evidence does not meet the substantial evidence standard
because the holes under the fence do not prove a propensity for vicious
behavior. We agree the fence evidence is
not related to the element of knowledge; however, there is other evidence
reflecting defendants’ knowledge of the dogs’ propensities for viciousness, so
we find this argument unpersuasive.
Second,
Lopez argues there were no prior reports about these particular four dogs
previously biting a person. We agree;
however, as set forth ante, one can
infer from the 2006 biting incident that Lopez had an awareness of her dogs
having problematic behaviors that needed to be addressed. Accordingly, we find this argument to be
unpersuasive.
Third,
Lopez contends that Mendez’s fear of the dogs has “nothing to do with [Lopez’s]
knowledge.†Again, Mendez’s statement is
useful evidence because it reflects the dogs were likely displaying aggressive
behavior prior to the attack. Mendez’s
statement allows for an inference to be made by the trier of fact. While it is not direct evidence of Lopez’s
knowledge, it adds to the circumstantial evidence. Thus, we find Lopez’s argument to be
unpersuasive.
Lopez
and Gonzalez assert it is problematic to consider the dogs’ aggressive behavior
after the biting incident, because it does not show how the dogs behaved
fails to address the inference that can be drawn from the dogs’ post-attack
aggression when combined with the evidence of (1) Mendez’s statement that she
was afraid of the dogs prior to the attack, (2) the 2006 biting incident, and
(3) the dogs’ inability to reach a state of calm days after attacking the
victims. These three items of evidence
lead to the reasonable inference that defendants’ dogs were likely highly
aggressive prior to the attack.
Gonzalez
asserts the proof does not meet the substantial evidence standard because there
was testimony from defendants’ neighbor reflecting she regularly interacted
with the dogs and they were not aggressive.
Gonzalez’s argument is not persuasive because we must look at the
evidence in the light most favorable to the judgment. As set forth ante, there is substantial circumstantial evidence supporting the
knowledge finding.
B. FOUR COUNTS PERTAINING TO DESTINY
Defendants
contend substantial evidence does not support two of the four counts pertaining
to Destiny because the evidence reflects Destiny was bitten by only two dogs,
not four. We disagree.
We
again apply the substantial evidence standard set forth ante. “‘Even when there is a
significant amount of countervailing evidence, the testimony of a single
witness that satisfies the standard is sufficient to uphold the finding.’ [Citation.]â€
(People v. Fuiava (2012) 53
Cal.4th 622, 711.)
Galvan
testified that he was in the backyard of his residence when he saw the dogs
attacking the family. Galvan said, “And
I saw four dogs shaking something.†Galvan
believed the four dogs were shaking a doll; however, Galvan later realized the
“doll†was Destiny. During the direct
examination of Galvan, the following exchange took place:
“[Prosecutor]: Now, were there four dogs on the little girl
or one dog?
“[Galvan]: Four, but one dog is trying to kill her. The other dog only tried to take the
leg. But one dog is taking right here
(indicating).
“[Prosecutor]: But there’s four dogs attacking the little
girl?
“[Galvan]: Yes.
Same time.â€
Galvan’s
testimony supports the conclusion that all four dogs attacked Destiny, because
Galvan clarified that all four dogs were harming the girl. Accordingly, Galvan’s testimony is
substantial evidence supporting four different counts relating to Destiny—one
count for each dog.
Lopez
asserts the evidence only supports a finding that Destiny was attacked by two
dogs because “multiple witnesses†said they saw only two dogs harming
Destiny. As explained
significant amount of countervailing evidence, the testimony of a single
witness’†can satisfy the substantial evidence standard. (People
v. Fuiava, supra, 53 Cal.4th at
p. 711.) In this case, Galvan twice
confirmed that he saw four dogs attacking Destiny. There is nothing impossible or inherently
improbable about Galvan’s testimony given that there were four dogs present
during the attack. Accordingly,
substantial evidence supports the four separate convictions related to Destiny.
Gonzalez
asserts Galvan’s testimony is not reliable because five other witnesses stated
they only saw two dogs biting Destiny and Galvan admitted it was difficult to
see the attack due the incident occurring at dusk. Gonzalez’s argument is not persuasive because
while Galvan’s testimony may be questionable, it is not improbable or
impossible. The rule we must apply is as
follows: The testimony of a single
witness is sufficient to sustain a conviction, unless the testimony is physically
impossible or inherently improbable. (
586.) There were four dogs at the attack
site when Destiny was attacked, so Galvan’s testimony is not physically
impossible in that it was possible for four dogs to attack Destiny. Galvan’s testimony is not inherently
improbable because he said he witnessed the attack, and while it was more
difficult to see because the attack was occurring at dusk, he twice confirmed
he saw four dogs attacking Destiny.
C. SECTION 654
Lopez
contends the trial court erred in sentencing her because all but one of her
sentences should have been stayed pursuant to section 654. Alternatively, Lopez asserts one of the
counts pertaining to Hector and three of the counts pertaining to Destiny
should have been stayed pursuant to section 654. Lopez argues that her only criminal act was
“not maintaining the fence,†and therefore she could not be punished for seven
different acts. We disagree.
Section
654, subdivision (a), provides: “An act
or omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.â€
Lopez’s
argument raises a legal issue involving statutory interpretation, so we apply
the de novo standard of review. (
890, 897.) “We look first to the
statutory language to determine the Legislature’s intent; if the language is
clear and unambiguous, there is no need for construction.†(Ibid.)
Section
399, subdivision (b), provides: “If any
person owning or having custody or control of a mischievous animal, knowing its
propensities, willfully suffers it to go at large, or keeps it without ordinary
care, and the animal, while so at large, or while not kept with ordinary care,
causes serious bodily injury to any human being who has taken all the
precautions that the circumstances permitted, or which a reasonable person
would ordinarily take in the same situation, is guilty of a misdemeanor or a
felony.â€
The
plain language of the statute reflects it is not simply punishing the failure
to maintain a fence. The crime set forth
in section 399, subdivision (b), is not focused on home maintenance. Rather, the plain language of the statute
reflects a crime is committed when (1) a dog causes serious bodily injury to a
person, (2) the victim did not instigate the attack, (3) the owner had
knowledge of the dog’s vicious propensities, and (4) the owner did not contain
the dog. The failure to maintain the
fence is one of the conditions or elements in the crime, but it is not the
whole crime. The other acts involved in
the crime are: (1) owning four dogs
while knowing of their vicious propensities, and then (2) the dogs’ acts of
inflicting serious bodily harm. Thus,
the crime does not simply involve the act of failing to maintain a fence. Thus, we conclude the trial court did not err
by not staying all but one of Lopez’s sentences because Lopez committed more
than one act under the statute by owning four dogs that attacked three
different victims.
We
now address Lopez’s alternative argument that there should only be one sentence
per victim: one sentence for Princess,
one for Hector, and one for Destiny.
Lopez argues this alternative in case this court concluded the failure
to maintain the fence was one crime with multiple victims. (See People
v. Oates (2004) 32 Cal.4th 1048, 1063 [“‘[T]he limitations of section 654
do not apply to crimes of violence against multiple victims’â€].)
As
explained ante, section 654 does not
apply in this case because Lopez’s criminal act is not simply the failure to
maintain a fence. The crime also
involves harboring vicious animals with knowledge of their viciousness and then
the animals’ act of seriously injuring a person. Accordingly, we reject Lopez’s alternative
argument because the multiple victim exception is not being applied due to
Lopez committing seven different crimes.
The
seven different crimes consist of the following: Lopez harbored dogs knowing of their vicious
propensities, her failure to maintain the fence permitted the dogs to run
loose, while running loose one of the dogs Lopez harbored attacked Princess
(one count), two of the dogs Lopez owned attacked Hector (two counts); and four
of the dogs Lopez owned attacked Destiny (four counts).
D. DOUBLE JEOPARDY
Lopez
contends the multiple convictions violate the law against
only one negligent act—failing to maintain the fence. We disagree.
“‘“[T]he
Double Jeopardy Clause ‘protects against a second prosecution for the same
offense after acquittal. It protects
against a second prosecution for the same offense after conviction. And it protects against multiple punishments
for the same offense.’ [Citation.]†[Citation.]’â€
(People v. Izaguirre (2007) 42
Cal.4th 126, 133.) Lopez’s argument
focuses on the multiple punishment protection of the Double Jeopardy
Clause.
As
explained ante, in our section 654
discussion, Lopez committed seven different crimes. Lopez harbored four dogs that she knew to
have propensities for vicious behavior.
Lopez did not properly contain the dogs, and the dogs were able to roam
the neighborhood. One of the dogs
inflicted a serious injury on Princess, two of the dogs inflicted serious
injuries on Hector, and four of the dogs inflicted serious injuries on
Destiny. By harboring four dogs with
vicious propensities and not properly containing them so that they came into
contact with three victims, Lopez is responsible for the individual dogs’
attacks on the individual victims; thus, one conviction for Princess, two
convictions for Hector, and four convictions for Destiny—seven separate crimes.
Lopez
argues that the gravamen of section 399, subdivision (b) is permitting an
animal to escape confinement and injure a person. Therefore, Lopez reasons, “[I]f one dog
escapes and bites five people, there still is only one negligent act, so there
is only one offense.†Lopez asserts the
one offense is failure to maintain a fence.
Lopez appears focused on the “escape confinement†portion of her point,
as opposed to the “injure a person†portion of the assertion.
Lopez
has provided this court with the legislative history for section 399.
Sess.).) However, the history provided
by Lopez is not persuasive because it only concerns an amendment to the statute
creating liability for people who have “custody and control [of] the animal,â€
in addition to the owners of the animal.
Since the ownership versus custody element is not in dispute here, the
legislative history for this amendment is of little assistance.
Moreover,
there is no need to analyze the legislative history of the statute, because the
plain language of the statute is clear.
(People v. Townsend (1998) 62
Cal.App.4th 1390, 1395 [If there is no ambiguity then “there is no need to
resort to extrinsic indicia of legislative intent, such as legislative
historyâ€].) The gravamen of the offense
is set forth in the statute: a vicious
dog bites a person. If that act takes
place under the conditions of (1) the owner having knowledge of the dog’s
vicious tendencies, and (2) the owner failing to have confined the animal, then
a felony has occurred.
Lopez’s
argument that the gravamen of the offense is failure to confine a dog, is not
persuasive because there is no offense unless a bite occurs. For example, if a vicious dog escapes
confinement and runs around a neighborhood while the dog’s owner is fully aware
of what is happening, the person would not be guilty under section 399 because
a bite has not taken place. It is when
the dog bites a person that the critical act has occurred. The law then looks to the conditions under
which the bite occurred to determine if a crime took place.
Lopez’s
argument seems to reject any idea that she is responsible for the acts of her
dogs, and asserts she can only be liable for her own failure of maintaining the
fence. This reasoning is flawed because
the plain language of the statute places liability on Lopez for the acts of her
dogs. Since the seven bites correspond
to a unique dog biting a unique victim there has not been multiple punishments
for a single act. Accordingly, the
multiple punishment provision of the Double Jeopardy Clause is not applicable.
Lopez
asserts the actus reus of section 399 is failure to maintain a fence because
the legislative history refers to the offense as one involving
being punished, not the fact the dog escaped, nor the fact the dog bit
someone.†Assuming Lopez is correct and
the actus reus is a negligent act on defendant’s part, the reasoning still fails. If a person shoots a gun and a single bullet
strikes two people, the shooter could be punished for two offenses. Just because there is a single act does not
mean there is a single crime. In this
case, Lopez’s negligence allowed four dogs to run loose, and those four dogs
committed seven unique bites on three victims.
Thus, Lopez is responsible for seven offenses.
E. CALCRIM NO. 2950
Defendants
contend the trial court erred in instructing the jury on the knowledge element
of the offense because it changed the element and lessened the prosecution’s
burden of proof. (CALCRIM No.
2950.) We disagree.
“We
review de novo whether jury instructions state the law correctly. [Citation.]â€
(People v. Jackson (2010) 190
Cal.App.4th 918, 923.) “Review of the adequacy
of instructions is based on whether the trial court ‘fully and fairly
instructed on the applicable law.’
[Citation.] ‘“In determining
whether error has been committed in giving or not giving jury instructions, we
must consider the instructions as a whole [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.â€
[Citation.]’ [Citation.] ‘Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’
[Citation.]†(
1082, 1088.)
In
regard to knowledge, section 399, subdivision (b), provides: “If any person owning or having custody or
control of a mischievous animal, knowing its propensities, willfully suffers it
to go at large . . . .†A “mischievous
animal†is a dangerous creature that “must be confined lest it injure others.†(Sea
Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 460.) The trial court instructed the jury with
CALCRIM No. 2950 as follows: “To prove
that a defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant owned or had
custody or control of a dangerous animal; [¶] 2. The
defendant knew that the animal was dangerous . . . .â€
The
trial court’s instruction is an accurate reflection of the law. The trial court explained the evidence needed
to reflect defendants had knowledge of the dog being dangerous. The court omitted the word “propensitiesâ€;
however, a reasonable juror would understand that in order for the prosecutor
to prove dangerousness there must be evidence of the dogs’ behavior. It would be difficult to prove “dangerous†in
any other manner. Thus, “dangerous
behavior†or “dangerous propensities†are implied in the instruction. As a result, we conclude the trial court did
not err.
Gonzalez
contends the trial court erred because it should have instructed the jury that
the crime requires defendants to “have knowledge that the individual behavior
of the animal demonstrates viciousness, a reasonable juror could have
understood this to mean that [Gonzalez’s] knowledge concerning characteristics
of the Pit Bull breed in general meant he had actual knowledge that his dogs
were dangerous, even if the juror was unconvinced that [Gonzalez] actually knew
of his dogs’ individual propensity for dangerousness.â€
We
do not find Gonzalez’s argument to be persuasive because the purpose of the
instruction was to explain what the prosecutor needed to prove. The instruction reflects that the prosecutor
needed to prove Gonzalez owned “a dangerous animal†and “knew that the animal
was dangerous.†The only reasonable
interpretation of this instruction is that the animal owned by Gonzalez had to
be dangerous—not a breed in general. If
the jury were instructed to consider whether the breed were dangerous then the
instruction would have read “owned a dangerous breed of animal†or “owned a dangerous
type of animal†and “knew the breed was dangerous.†However, that is not how this instruction
read. The instruction discusses the
specific animal owned by Gonzalez. Accordingly,
we find Gonzalez’s argument to be unpersuasive.
Lopez
contends the jury instruction was problematic because it “informed the jury it
need only find the owner ‘knew that the animal was dangerous.’ [Citation.]
Which animal? One out of four? All four?
The specific dogs which bit a specific child? The mastiff which did not bite anyone?†The only reasonable reading of the
instruction is that “the animal†in the instruction corresponds to the dog in
the individual count. So, Count 1
involves the dog that bit Princess, Count 2 involves the first dog that bit
Hector, Count 3 involves the second dog that bit Hector, and so on. A plain reading of the instruction is clear
on this point, as it would be unreasonable to read the instruction as
reflecting the prosecutor could prove Lopez owned Dog-A, but Dog-B was
dangerous, and Dog-C bit a person.
F. UNANIMITY
Lopez
contends the trial court erred by not instructing the jury on the law of
unanimity. Specifically, Lopez asserts
the trial court should have sua sponte
instructed the jury that it could only find defendants guilty of a particular
count “if the jury unanimously agreed the defendants had prior knowledge of the
dangerousness of a specific dog which bit a specific child who was the subject
of that count.†We disagree.
“‘It
is established that some assurance of unanimity is required where the evidence
shows that the defendant has committed two or more similar acts, each of which
is a separately chargeable offense, but the information charges fewer offenses
than the evidence shows. [Citation.] [A unanimity] instruction is intended to
eliminate the danger that the defendant will be convicted even though there is
no single offense which all the jurors agree the defendant committed . . .
.’†(People
v. Milosavljevic (2010) 183 Cal.App.4th 640, 645.)
The
factual basis for the charges in this case are unique: Count 1 involves a dog biting Princess. Count 2 involves one dog biting Hector. Count 3 involves a second dog biting Hector. Counts 4, 5, 6, and 7 concern the four
separate dogs each biting Destiny. There
is only one possible offense in each count.
There is no risk of two acts or similar acts being confused because all
the possible acts were charged separately.
Accordingly, we conclude the trial court did not err.
Lopez
contends the trial court erred because “[h]alf [of] the jurors may have believed
[defendants] had reason to know dog A was dangerous, but not dog B. That same half [of] the jurors may have
believed dog B was the dog which bit a child, not dog A.†As explained ante, this argument is not persuasive because, given the
instruction, it would be unreasonable to read the instruction related to the
offense as reflecting the prosecutor could prove Lopez owned Dog-A, but Dog-B
was dangerous, and Dog-C bit a person.
Thus, there was not a need for the unanimity instruction.
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
KING
Acting P. J.
CODRINGTON
J.
further statutory references are to the Penal Code unless indicated.
victims’ first names were used in the trial court. For the sake of clarity, we also use the
victims’ first names. No disrespect is
intended.
